{"id":247236,"date":"2010-11-01T00:00:00","date_gmt":"2010-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-p-karunakaran-nair-vs-r-sudhamani-amma-on-1-november-2010"},"modified":"2017-03-30T17:18:18","modified_gmt":"2017-03-30T11:48:18","slug":"k-p-karunakaran-nair-vs-r-sudhamani-amma-on-1-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-p-karunakaran-nair-vs-r-sudhamani-amma-on-1-november-2010","title":{"rendered":"K.P.Karunakaran Nair vs R.Sudhamani Amma on 1 November, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
K.P.Karunakaran Nair vs R.Sudhamani Amma on 1 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 261 of 2007()\n\n\n1. K.P.KARUNAKARAN NAIR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. R.SUDHAMANI AMMA,\n                       ...       Respondent\n\n2. K.P.SREEKUMAR, S\/O.PADMANABHA PILLAI,\n\n                For Petitioner  :SRIR.AZAD BABU\n\n                For Respondent  :SRI.P.G.PARAMESWARA PANICKER (SR.)\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MR. Justice K.SURENDRA MOHAN\n\n Dated :01\/11\/2010\n\n O R D E R\n                            PIUS C. KURIAKOSE &\n                         K. SURENDRA MOHAN, JJ.\n                ------------------------------------------------------------\n                           R.C.R NO:261 OF 2007\n                 -----------------------------------------------------------\n                 Dated this the 1st November, 2010.\n\n                                      O R D E R\n<\/pre>\n
Surendra Mohan, J.\n<\/p>\n
      This is a tenant’s revision, filed challenging concurrent orders<\/p>\n
of eviction passed by the Rent Control Court and confirmed by the<\/p>\n
Rent Control Appellate Authority.\n<\/p>\n
      2. RCP 64\/97 of the Rent Control Court, Alappuzha was filed<\/p>\n
by the first respondent-landlady under the provisions of the Kerala<\/p>\n
Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred<\/p>\n
to as the ‘Act’ for short) seeking eviction of the tenant on the<\/p>\n
grounds of arrears of rent, Section 11(2)(b), bonafide need for own<\/p>\n
occupation, Section 11(3) and for additional accommodation Section<\/p>\n
11(8). The petition was contested by the tenant. After trial the<\/p>\n
Rent Control Court granted eviction only on the ground of arrears<\/p>\n
of rent. Therefore, the landlady filed RCA 28\/2005 before the Rent<\/p>\n
Control Appellate Authority, Alappuzha. As per judgment dated<\/p>\n
19\/1\/2007, the Appellate Authority allowed the appeal and found<\/p>\n
that the tenant was liable to be evicted on the ground of bonafide<\/p>\n
need for own occupation of the landlord also. The order of eviction<\/p>\n
RCR 261\/2007                    2<\/span><\/p>\n
under Section 11(2)(b) has become final. Therefore, the ground of<\/p>\n
attack of the tenant in the above revision is confined to the order of<\/p>\n
eviction granted under Section 11(3) of the Act.<\/p>\n
      3. The tenanted shop room is part of a line building of nine<\/p>\n
shop rooms on one side with a set of same number of shop rooms<\/p>\n
on the rear side also. The building is situate on the western side of<\/p>\n
the public road in front of the S.D College, Alappuzha.          The<\/p>\n
building originally belonged to the father of the first respondent.<\/p>\n
After the death of her father and mother, the first respondent<\/p>\n
succeeded to the ownership of the same. Thereafter, the tenant<\/p>\n
attorned to the first respondent and has been paying rent to her.<\/p>\n
      4. The tenanted premises is the third room from the south,<\/p>\n
forming part of the above building, bearing Municipal door No:<\/p>\n
1131. The shop room was taken on rent in the names of the<\/p>\n
revision petitioner and the second respondent as per Ext.A1 rent<\/p>\n
deed dated 11\/2\/1981 from the father of the first respondent. The<\/p>\n
monthly rent of the building is Rs.60\/-. The revision petitioner-<\/p>\n
tenant is conducting a college book stall in the petition schedule<\/p>\n
shop room.      The first respondent-landlady       is conducting a<\/p>\n
stationery shop in the adjacent shop room. She is also conducting<\/p>\n
RCR 261\/2007                     3<\/span><\/p>\n
a ladies store in the southernmost room and a beauty parlour in<\/p>\n
another room behind the ladies store.\n<\/p>\n
       5. According to the landlady, the room from which she is<\/p>\n
conducting her beauty parlour has no road frontage or sufficient<\/p>\n
space for conducting the same in a convenient and profitable<\/p>\n
manner.     The landlady contended that since she has no other<\/p>\n
employment, she wants to shift the beauty parlour to the tenanted<\/p>\n
shop room and, therefore she needed the same for her bonafide<\/p>\n
own occupation.     She also contended that her daughter who is<\/p>\n
dependent on her was also interested in conducting the business.<\/p>\n
It is the further contention of the landlady that the rent is in arrears<\/p>\n
and that the tenant has another room bearing door No: XXXIII\/1119<\/p>\n
nearby in his occupation, which is sufficient to accommodate his<\/p>\n
business. Therefore, she sought eviction of the tenant.<\/p>\n
       6. The petition was resisted by the tenant, contending that<\/p>\n
there was absolutely no bonafides in the need that was put forth by<\/p>\n
the landlady. According to the tenant a number of rooms in the<\/p>\n
same building were lying vacant. Other rooms that got vacated<\/p>\n
were either kept vacant or were rented out.         According to the<\/p>\n
tenant, the landlady had no intention to shift the beauty parlour.<\/p>\n
Her case that the room had no road frontage was also disputed<\/p>\n
RCR 261\/2007                    4<\/span><\/p>\n
contending that the said room presently faces the newly formed,<\/p>\n
NH By pass road. According to the tenant the eviction was sought<\/p>\n
only out of personal enmity for the reason that there were a<\/p>\n
number of proceedings before the Accommodation Controller<\/p>\n
between himself and the landlady. The tenant also contended that<\/p>\n
he was conducting a business selling books, that his business could<\/p>\n
earn profits only because of its location in front of the S.D.College.<\/p>\n
He therefore, contended that it was not possible for his business to<\/p>\n
be shifted elsewhere. According to the tenant, the other shop room<\/p>\n
occupied by him was about half a kilometer away and was used only<\/p>\n
as a godown.\n<\/p>\n
     7.   The evidence in the case consists of Exts.A1 to A12<\/p>\n
documents and the oral evidence of the landlady as P.W.1 on one<\/p>\n
side and Exts.B1 to B6 documents and the oral evidence of C.P.Ws 1<\/p>\n
and 2 on the side of the tenant.\n<\/p>\n
     8.    On   a consideration of the evidence both oral and<\/p>\n
documentary, the Rent Control Court came to the conclusion that<\/p>\n
the landlady had not succeeded in making out the grounds under<\/p>\n
Section 11(3) and 11(8). Therefore, eviction was granted only under<\/p>\n
Section 11(2)(b) of the Act. The Appellate Authority while allowing<\/p>\n
the appeal filed by the landlady has found that the landlady had<\/p>\n
RCR 261\/2007                     5<\/span><\/p>\n
established her bonafide need under Section 11(3) of the Act and,<\/p>\n
therefore, granted an order of eviction under Section 11(3) of the<\/p>\n
Act also. The said judgment of the Appellate Authority is under<\/p>\n
challenge in this Rent Control Revision.\n<\/p>\n
      9. As per order in I.A.939\/2009 an Advocate Commissioner<\/p>\n
was deputed from this Court to make a local inspection of the<\/p>\n
tenanted premises and to submit a report to this Court regarding<\/p>\n
the present     condition of the      building and other     details.<\/p>\n
Accordingly, the Advocate Commissioner visited the premises on<\/p>\n
11\/4\/2009 and has filed a report dated 25\/5\/2009, which is part of<\/p>\n
the record. The said report is admitted in evidence and is marked<\/p>\n
as a court exhibit, Ext.C1.\n<\/p>\n
      10. According to the description in the Commission report,<\/p>\n
the building in which the petition schedule shop room is situate, is<\/p>\n
in a dilapidated condition.    It is the case of the tenant that the<\/p>\n
room in which the landlady is conducting her beauty parlour has<\/p>\n
frontage of the NH By pass which is situate at the back of the line<\/p>\n
building.   The Advocate Commissioner has reported that no such<\/p>\n
road frontage is available. In fact, only an access is possible from<\/p>\n
the line building through a Municipal road having a width of 3.90<\/p>\n
mtrs connecting the By pass road. However, the Commissioner has<\/p>\n
RCR 261\/2007                     6<\/span><\/p>\n
reported that six rooms on the northern side of the petition<\/p>\n
schedule premises form part of a newly constructed building which<\/p>\n
faces the NH 47.     The rooms in the said building are secured by<\/p>\n
rolling shutters. Except for one room which was remaining closed,<\/p>\n
the Advocate Commissioner has found that the rest of the rooms<\/p>\n
were occupied by different tenants. The Advocate Commissioner<\/p>\n
has reported that in the second room from the south, a banner of<\/p>\n
the LDF candidate of Alappuzha constituency, Shri. K.S.Manoj is<\/p>\n
displayed.   It is clear from the commission report that the tenant<\/p>\n
has another premises in his occupation which is located about 30<\/p>\n
mtrs away from the tenanted shop room. The said room is part of<\/p>\n
another line building with 10 rooms in the front row. It is also<\/p>\n
reported by the Advocate Commissioner that the petition schedule<\/p>\n
shop room and the second room occupied by the tenant are both<\/p>\n
situate opposite to the S.D.College compound facing the N.H 47.<\/p>\n
      11.   The landlady has filed objections to the commission<\/p>\n
report contending hat the report suffers from many inaccuracies.<\/p>\n
According to the landlady there is no proper access to the room in<\/p>\n
which she is conducting her beauty parlour. The only access is to<\/p>\n
an open space (courtyard) which is on the northern side of the said<\/p>\n
shop room.     She has refuted the observation of the Advocate<\/p>\n
RCR 261\/2007                    7<\/span><\/p>\n
Commissioner in his report that her husband had told him at the<\/p>\n
time of inspection that four rooms in new building are lying vacant.<\/p>\n
According to her, three rooms out of the four, have already been<\/p>\n
sold off by her. Two rooms are in the occupation of tenants and<\/p>\n
the remaining one room is occupied by her. She is conducting her<\/p>\n
stationery shop business from the said room. Therefore, according<\/p>\n
to the landlady, there are no suitable vacant shop rooms available<\/p>\n
for the purpose of shifting her beauty parlour business.<\/p>\n
      12.  The landlady has produced two additional documents<\/p>\n
along with I.A.1262\/2009.      One of the documents is an order<\/p>\n
issued by the Municipal Secretary, Alappuzha according sanction to<\/p>\n
her for the reconstruction of her old building that had collapsed.<\/p>\n
The same is order No: E3B-472\/05-06 dated 27\/3\/2006 and is<\/p>\n
marked in her affidavit as Annexure A. Annexure B is an order<\/p>\n
dated 20\/7\/2007 passed by the Tahsildar and Accommodation<\/p>\n
Controller, Alappuzha, on a petition filed by the tenant for a<\/p>\n
direction to compel the landlady to conduct periodic maintenance<\/p>\n
of the tenanted shop room. As per order dated 3\/7\/2009, the<\/p>\n
above I.A has been allowed and the documents produced as<\/p>\n
Annexures A and B have been marked as Exts.A13 and 14<\/p>\n
respectively.\n<\/p>\n
RCR 261\/2007                     8<\/span><\/p>\n
      13.   We have heard Mr. Azad Babu who appears for the<\/p>\n
revision petitioner    and Senior Advocate Shri. P.G.Parameswara<\/p>\n
Panicker who appears for the landlady, in detail. We have gone<\/p>\n
through the records of the case and have given anxious<\/p>\n
consideration to the issues raised and argued before us.<\/p>\n
      14. It is not in dispute that the landlady is conducting various<\/p>\n
businesses in the building in which the tenanted shop room is<\/p>\n
situate. She is already in occupation of one room from which she is<\/p>\n
conducting a business in stationery items and another shop room<\/p>\n
from which she is conducting a ladies store. Apart from the above,<\/p>\n
the petitioner is also conducting a beauty parlour. The need of the<\/p>\n
petitioner is for the purpose of shifting her beauty parlour to the<\/p>\n
petition schedule shop room. She wants to expand her business<\/p>\n
and to conduct the beauty parlour on a larger scale, which she is<\/p>\n
not able to do from the premises presently occupied by her for the<\/p>\n
reason that the same has no road frontage. There is no evidence or<\/p>\n
material on record to indicate that the need of the landlady is not<\/p>\n
bonafide. Though she had initially stated that her daughter was<\/p>\n
also intending to join her in the business of conducting her beauty<\/p>\n
parlour, it is pointed out by the counsel for the revision petitioner<\/p>\n
that the daughter has since been married off and is living with her<\/p>\n
RCR 261\/2007                   9<\/span><\/p>\n
husband at Kottayam. That does not affect the bonafides of the<\/p>\n
landlady’s need for the reason that, nothing prevents her from<\/p>\n
conducting the beauty parlour by herself. The tenant also does not<\/p>\n
have a case that she has stopped her beauty parlour after her<\/p>\n
daughter’s marriage.   As rightly taken note of by the Appellate<\/p>\n
Authority, the landlady has obtained an SSI Registration for her<\/p>\n
beauty parlour. She has spoken to her need, when examined in<\/p>\n
Court and has also withstood the cross examination of the counsel<\/p>\n
for the tenant. Therefore, we hold that the finding of the Appellate<\/p>\n
Authority that the landlady has succeeded in proving her bonafide<\/p>\n
need is well founded.\n<\/p>\n
      15. According to the counsel for the revision petitioner, the<\/p>\n
landlady has demolished the entire building portion on the northern<\/p>\n
side of the tenanted shop room and has reconstructed the same.<\/p>\n
The new reconstructed building has six shop rooms which<\/p>\n
according to the revision petitioner are in her possession.<\/p>\n
Therefore, it is contended that the bonafide need of the landlady<\/p>\n
has been extinquished. The Advocate Commissioner was deputed<\/p>\n
by this Court to ascertain and report regarding the above factual<\/p>\n
position.  Accordingly Ext.C1 report has brought on record, the<\/p>\n
present position of the building.   Ext.C1 report shows that the<\/p>\n
RCR 261\/2007                    10<\/span><\/p>\n
building on the northern side was demolished by the landlady and<\/p>\n
that she has put up a new building in its place. According to the<\/p>\n
landlady, the entire building had become dilapidated, was on the<\/p>\n
verge of collapse due to old age and had to be reconstructed.<\/p>\n
Therefore, she had sought permission for such reconstruction.<\/p>\n
However, while granting permission for reconstruction, the<\/p>\n
Municipality insisted on the landlady to pull back the building from<\/p>\n
the National Highway by a distance of 4 = mtrs. But she could not<\/p>\n
undertake the construction because the rooms were occupied by<\/p>\n
the tenants.    While so, the northern portion of the building<\/p>\n
comprising of six rooms collapsed and fell down. The landlady had<\/p>\n
to complete the construction of the collapsed portion alone,<\/p>\n
because she could not get possession of the tenanted premises. It<\/p>\n
is contended by the landlady that the tenanted premises are also in<\/p>\n
a dilapidated condition and that it is not safe for the customers to<\/p>\n
be admitted since it may collapse at any time.\n<\/p>\n
      16. Regarding the rooms in the newly constructed portion of<\/p>\n
the building, the case of the landlady is that three rooms have been<\/p>\n
sold by her while two rooms are in the occupation of tenants. From<\/p>\n
the remaining one room, the landlady is conducting her business in<\/p>\n
stationery items, which was earlier being conducted in the old<\/p>\n
RCR 261\/2007                   11<\/span><\/p>\n
building. Therefore, according to the landlady, there was no room<\/p>\n
available in the newly constructed building for shifting her beauty<\/p>\n
parlour. According to the counsel for the landlady, the shop rooms<\/p>\n
had to be sold for the purpose of meeting the cost of construction<\/p>\n
of the new building.\n<\/p>\n
      17. Though it is admitted that the northern portion of the<\/p>\n
line building had collapsed and had to be reconstructed, there is no<\/p>\n
evidence or material available on record to show what the<\/p>\n
dimensions of the old building were and who the tenants in<\/p>\n
occupation thereof were.     There is also no evidence available<\/p>\n
regarding the dimensions of the newly constructed building.<\/p>\n
According to the counsel for the landlady, the area of the building<\/p>\n
had to be substantially reduced because of the insistence of the<\/p>\n
Alappuzha Municipality on a pull back of 4 = mtrs from the<\/p>\n
National Highway being maintained.         Since the reconstructed<\/p>\n
rooms were smaller in dimension, they        were not suitable for<\/p>\n
shifting the landlady’s beauty parlour.    The contentions of the<\/p>\n
counsel for the landlady are stoutly opposed by the counsel for the<\/p>\n
revision petitioner.    It is contended that the rooms in the<\/p>\n
reconstructed building are sufficiently large enough to satisfy the<\/p>\n
need of the landlady. It is contended that the burden to establish<\/p>\n
RCR 261\/2007                     12<\/span><\/p>\n
special reasons as to why the rooms in the newly constructed<\/p>\n
building were not sufficient to satisfy her need was on the landlady<\/p>\n
and therefore, having failed to establish any such special reasons,<\/p>\n
the order of eviction was liable to be set aside.<\/p>\n
      18. We notice from the judgment of the Appellate Authority<\/p>\n
that the above contention had been raised before the said Authority<\/p>\n
also.   At that time, it was contended that the landlady was in<\/p>\n
possession of other vacant rooms to one of which she could shift<\/p>\n
her beauty parlour.   She has answered the above allegation in her<\/p>\n
evidence by deposing that the tenanted shop room was the most<\/p>\n
ideal for her to shift the beauty parlour.       The same has been<\/p>\n
accepted and relied upon by the Appellate Authority.        Similarly,<\/p>\n
though it was pointed out that the northern portion of the line<\/p>\n
building had been demolished by the landlady, the Court below has<\/p>\n
found that since the tenanted shop room was still intact, her need<\/p>\n
was still subsisting. We notice that the above are all questions of<\/p>\n
fact on which there is a total lack of evidence on record.         The<\/p>\n
Appellate Authority has decided the issues involved on the fact<\/p>\n
situation obtaining at the time of filing of the Rent Control Petition.<\/p>\n
The Rent Control Petition was tried and evidence was let in, to<\/p>\n
prove the facts and circumstances that existed at that time. What<\/p>\n
RCR 261\/2007                     13<\/span><\/p>\n
the tenant wants at present is for us to take note of the subsequent<\/p>\n
events and to set aside the findings of the authorities below.<\/p>\n
     19. We do not think that this is a fit case in which the entire<\/p>\n
matter should be remanded for the purpose of permitting the<\/p>\n
parties to let in further evidence to establish the disputed questions<\/p>\n
of fact on the basis of subsequent events.     We notice that this is a<\/p>\n
Rent Control Petition of the year 1997. The landlady has been<\/p>\n
trying to obtain possession of the premises for more than a decade.<\/p>\n
The building is old, damaged and is likely to collapse at any<\/p>\n
moment.     The business of the tenant has only flourished and<\/p>\n
admittedly, he is in occupation of another premises, close by. The<\/p>\n
Advocate Commissioner has reported that the other shop room<\/p>\n
occupied by him is only 30 mtrs away from the petition schedule<\/p>\n
shop room in the present case.        Therefore, surrender of vacant<\/p>\n
possession of the tenanted premises would not cause any prejudice<\/p>\n
to him. We are also reminded of the fact that the rent in respect of<\/p>\n
the tenanted premises is in arrears and an order of eviction has<\/p>\n
been granted by the Rent Control Court for the above reason,<\/p>\n
which has become final.           Therefore, there is no equity in<\/p>\n
permitting the tenant who has defaulted payment of even the paltry<\/p>\n
rent, to continue in occupation of the premises.         We also take<\/p>\n
RCR 261\/2007                     14<\/span><\/p>\n
note of the fact that the interests of the tenant is sufficiently<\/p>\n
protected by Section 11(12) of the Act which confers a right of re-<\/p>\n
possession of the building on him if the landlady does not occupy<\/p>\n
the premises within the time stipulated by the statute.              In<\/p>\n
appropriate cases, this Court has even permitted tenants to<\/p>\n
reconstruct the tenanted premises to give effect to the statutory<\/p>\n
mandate.     We do not find any illegality, impropriety or irregularity<\/p>\n
vitiating the findings of the authorities below.<\/p>\n
       20. For the above reasons, we confirm the findings of the<\/p>\n
Rent Control Appellate Authority under Section 11(3) of the Act.<\/p>\n
The Rent Control Revision fails and is liable to be dismissed. We do<\/p>\n
so.\n<\/p>\n
       21.  This Rent Control Revision is accordingly ordered as<\/p>\n
follows:-\n<\/p>\n
       a) The order of eviction granted by the Appellate Authority<\/p>\n
under Section 11(3) of the Act is confirmed.\n<\/p>\n
       b) The revision petitioner-tenant is given time up to<\/p>\n
31\/1\/2011 to surrender vacant possession of the petition schedule<\/p>\n
shop room to the landlady on condition that he files an affidavit<\/p>\n
before the Rent Control Court or the Execution Court, as the case<\/p>\n
may    be,   unconditionally   undertaking    to   surrender   vacant<\/p>\n
RCR 261\/2007                   15<\/span><\/p>\n
possession of the premises to the landlady on or before the said<\/p>\n
date.\n<\/p>\n
     c) The tenant shall also pay the entire arrears of rent due to<\/p>\n
the landlady and shall continue to pay the rent in respect of the<\/p>\n
premises without any delay or default until he surrenders vacant<\/p>\n
possession of the premises.\n<\/p>\n
     d)    In the event of the tenant committing default of any of<\/p>\n
the above conditions, the landlady shall be free to seek eviction of<\/p>\n
the tenant in accordance with law, immediately. No costs.<\/p>\n
                                         PIUS C. KURIAKOSE
\n                                                 Judge<\/p>\n
                                         K. SURENDRA MOHAN
\n                                                  Judge
\njj<\/p>\n
RCR 261\/2007    16<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K.P.Karunakaran Nair vs R.Sudhamani Amma on 1 November, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM RCRev..No. 261 of 2007() 1. K.P.KARUNAKARAN NAIR, … Petitioner Vs 1. R.SUDHAMANI AMMA, … Respondent 2. K.P.SREEKUMAR, S\/O.PADMANABHA PILLAI, For Petitioner :SRIR.AZAD BABU For Respondent :SRI.P.G.PARAMESWARA PANICKER (SR.) The Hon’ble MR. Justice PIUS C.KURIAKOSE The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-247236","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK.P.Karunakaran Nair vs R.Sudhamani Amma on 1 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-p-karunakaran-nair-vs-r-sudhamani-amma-on-1-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.P.Karunakaran Nair vs R.Sudhamani Amma on 1 November, 2010 - 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